Schmitz v. Klee

• Court: Washington Supreme Court
• Writing for the Court: HOLCOMB, J.
• Citation: Schmitz v. Klee, 103 Wash. 9, 173 P. 1026 (Wash. 1918)
• Decision Date: 24 June 1918
• Docket Number: 14731.
• Parties: SCHMITZ v. KLEE et ux.

173 P. 1026

103 Wash. 9

SCHMITZ v. KLEE et ux.

No. 14731.

Supreme Court of Washington

June 24, 1918

Department 2. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Action by C. Schmitz against Joseph Klee and wife to establish title to realty. From a judgment for defendants, plaintiff appeals. Affirmed.

Michael Dowd and E. B. Brockway, both of Tacoma for appellant.

Fitch Jacobs & Arntson, of Tacoma, for respondents.

HOLCOMB J.

Andrew F. Byrd entered and filed upon a donation claim in section 34, township 20, range 2 east, W. M. Before patent issued Mr Byrd died, and in the probation of his estate the claim was sold and described as:

'A. F. Byrd's donation land claim, situated in Pierce county, W. T., and particularly described and bounded as follows: Beginning at a stake standing on the prairie northwesterly of the mills and dwelling house situated on said claim, and running thence south 160 rods, to a lake; thence east 160 rods, to a stake near a white oak tree; thence north 160 rods; thence west 160 rods, to the place of beginning--the same being the donation land claim described in the notification No. 1076, now on file in the office of the register of the land office of Washington Territory, at Olympia, and contains 160 acres of ground, more or less.'

This description would cut off a peninsula (the property in dispute), extending south from the southern boundary into Lake Steilacoom. Defendants trace their chain of alleged title to this peninsula through the above description. The government made a meander survey of the shore of the lake, which also cut off the peninsula, leaving the peninsula unsurveyed ground as far as appears. In 1871 the United States government issued a patent to the heirs at law of Andrew F. Byrd, deceased, describing the claim by metes and bounds, and also referring to it as 'Notification No. 1076, Claim No. 42.' The exact description contained in the notification certificate and claim No. 42 nowhere appears in the record, unless we may presume it to be the same as contained in the patent. A plat of the donation claim and the disputed peninsula is as follows:

(Image Omitted)

In 1890 Frederick Meyer, Frederick Nachtsheim, and Joseph Klee, owners of the Andrew F. Byrd donation claim, quitclaimed to the United States for the purpose of having the patent of 1871 canceled and a corrected patent of the claim issued. In this corrected patent of 1890 the United States issued it to the heirs at law of Andrew F. Byrd, deceased, described as notification No. 1096, claim No. 42, being bounded and described as follows, to wit:

'Beginning at a point 4 chains and 65 links west of the S.E. corner of the N.E. 1/4, Sec. 34, and running thence north 30 chains and 18 links; thence west 43 chains and 93 links; thence south 39 chains and 20 links, to a point on Lake Steilacoom; thence north 83~ east 6 chains; thence north 28~> west 7 chains and 90 links; thence north 56~ 30' east 5 chains; thence north 89~ 15' east 6 chains and 20 links; thence north 3~ 30' east 1 ch. 70 lks.; thence north 21~ east 2 chains; thence south 70~ east 1 ch. 20 lks.; thence south 12~> west 3 ch. 50 lks.; thence south 3~30' east 5 ch. 50 lks.; thence south 20~ east 2 ch. 10 lks.; thence south 33~> east 2 ch. 30 lks.; thence south 10~ east 1 ch.; thence east 26 ch. 74 lks.; and thence north 9 ch. 2 lks. to place of beginning--containing 158.79 acres.'

It is apparent, in comparing these calls with the foregoing plat, that this description does not include the disputed peninsula. In 1904, by subsequent conveyance, respondents claim to be the sole owners of that portion of the Byrd donation claim containing 30.70 acres, bounding the disputed peninsula on the north.

Respondents are the daughter and the son-in-law of appellant, and seem to have been in friendly relation until this suit. Prior to 1900 appellant lived about seven years, without paying rent, in a little house called the 'Mill House,' situated on the Byrd donation claim, having been moved there by respondent Joseph Klee. About 1885 or 1888 one Meyers became the owner of a portion of the Byrd donation claim, which did not bound the disputed peninsula; nevertheless he went into possession of the peninsula, built a house (which was occupied by his daughter), and fenced off the peninsula approximately on the line of the meander call. Meyer remained in possession until he sold to one Hill, who sold to appellant by the following instrument:

'Tacoma, Washington, May 5, 1900.

'This agreement, made this day and year, May 5, 1900, Edward C. Hill and wife, of the first part, and C. Schmitz, of the second part, that the parties of the first part, for and in consideration of $100 paid by the party of the second part, or Mrs. C. Schmitz, the receipt whereof is hereby acknowledged, do hereby remise, release, and forever sell unto the party of the second part the following improvements and all interest and title the parties of the first part may have in the piece known as the point in Steilacoom Lake; also one four-room house, one barn, chicken house, well, and all fences thereon.'

Appellant, a widow, with her son, Adolph, immediately went into possession of the peninsula, and the respondents, at no time prior to 1916, attempted to oust either Meyers, Hill, or appellant. Prior to the purchase from Hill, appellant consulted Joseph Klee, one of the respondents, in regard to the purchase, and she was advised by him that she could live there as long as she wished, or as long as she lived, as far as he was concerned. In 1905 appellant told Joseph Klee that one Pease had offered her $500 for the place, whereupon he told her that he would give her the same for it. In his testimony he stated it was for the improvements, and to get her off the place.

It is not shown that any one paid taxes on this disputed peninsula. During the summer of 1916 Klee was informed by some government officers that he owned the peninsula by virtue of the description in the patent. He told Adolph Schmitz that he would have to pay rent for his cattle running on the place. Soon thereafter Klee built a house on the peninsula. Appellant commenced this action to establish her title. The trial court held that appellant's possession was subservient to respondents, and really their possession, and not adverse to them. Upon this ground judgment was entered, quieting title in respondents.

Appellant assigns as errors: The refusal of the court to give findings of fact Nos. 1 to 14, and conclusions of law Nos. 1 to 3, proposed by plaintiff; the giving by the court of findings of fact Nos. 1, 3, 4, 5, 8, 9, and 10, and conclusions of law Nos. 1 to 6, proposed by defendants; and the entry by the court of judgment herein dismissing plaintiff's action, holding that her claim was not good and not adverse, and quieting title against any claim of the plaintiff. These assignments, involving the question of title by adverse possession, or otherwise, of the disputed peninsula, may be discussed in toto.

Appellant contends that, under the United States laws governing donation claims, the probate proceeding (being prior to the issuance of patent) was ineffectual to pass title or change the status of the Byrd donation claim, and that the subsequent issuance of the patent by the United States to the heirs of Andrew F. Byrd vested title in such 'heirs,' rather than in the grantees of his administrator, and that for this reason, if for no other, the legal title (except as affected by adverse possession) still remains in the Byrd heirs. If we should hold that appellant's contention is correct, then her claim of adverse possession against the heirs of Andrew F. Byrd would have foundation. The quitclaim deed by Klee and Nachtsheim to the government shows that it was given for the purpose of correcting a description in the former patent. It is customary for the United States government to issue its patent to the heirs of a deceased entryman, and leave it to the state courts to determine who are the heirs. It cannot be said that the granting of the patents to the heirs of Andrew F. Byrd, deceased, in these instances deprived the respondents of that portion of the donation claim bounding the peninsula on the north. Although the patents by their description do not specifically include the disputed peninsula, it is plain that the land on the north adjoining this peninsula becomes the upland abutting the same.

If the peninsula is not a part of the donation claim, it remains government land, which cannot be acquired by adverse possession. Slaght v. Northern Pacific R. Co., 39 Wash. 576, 81 P. 1062. The original meander line cut off the peninsula, leaving it outside the meander. It is the policy of the government...